Industrial Supplies Ltd v Superb Advertising & Signage Ltd [2021] FJMC 10; Miscellaneous Action 17 of 2018 (24 February 2021)

IN THE MAGISTRATE’S COURT OF FIJI
CIVIL JURISDICTION
WESTERN DIVISION AT LAUTOKA
Miscellaneous Action No. 17 of 2018

BETWEEN : Industrial Supplies Limited of Lot 1, Veitari, Lautoka.

Applicant

AND : Superb Advertising & Signage Limited of 11 Yawini Street, Lautoka.

Respondent

Before : The Resident Magistrate: Mr. Jeremaia N. Lewaravu

Date of Hearing: 24^th of November 2020
Date of Judgement: 24^th of February 2021

Appearance
Ms. Nair of P & N Lawyers for the Applicant
Mr. Shafiq for the Respondent

Judgement
Introduction

1. The Applicant filed a Motion with Supporting Affidavit on the 8^th of November 2018 seeking to extend the time limit to file a Notice of Appeal. Essentially, the Applicant is seeking to appeal the decision of the Small Claims Tribunal at Lautoka dated 30^th of May 2018. The Respondent is opposing the application and has filed an Affidavit in Opposition dated 25^th January 2019 to that effect.
   
2. The delay in this case is attributed to the non-compliance of certain Orders by both parties. At one point in the tenure of this case, it was struck out before it was reinstated to the cause list. The Hearing of the Motion was finally held on the 24^th of November 2020.
   

The Law

3. Order XXXVII of the Magistrates Court Rules stipulate in subsection 4 that:
   

‘On the Appellant failing to file the grounds of appeal within the prescribed time, he shall be deemed to have abandoned the appeal, unless the Court below or the Appellant Court shall see it fit to extend the time’.

The Hearing

4. The Applicant stated that an application to appeal out of time was filed in person on the 25^th of July 2018. The matter was called in Court 1 and was subsequently withdrawn by his Solicitor as it was ruled defective. I have perused the file and note the lack of documentary proof to substantiate this claim. I will therefore not comment on this issue any further.
   
5. The Applicant submits that he was unaware of the requirement to file an appeal within 14 days. The Applicant also stated that the initial application was filed after 2 months before it was withdrawn and then there was a further delay of 3 month because of the withdrawal. The Applicant said that it acted promptly in filing the application to appeal out of time and

the delay if any is reasonable.

6. The Applicant further submits that the decision by the Small Claims Tribunal was made without a proper Hearing, He has a meritorious claim. The Applicant states that the Respondent will not be prejudiced. The Applicant also stated that there would be a grave miscarriage of justice and unjust enrichment in this case as the Respondent was already paid for the work done. The Applicant submits that he has a right to be provided with an opportunity to appeal.
   
7. The Respondent states that there can only be two grounds of appeal under section 33(1) of the Small Claims Tribunal Decree. The Respondent further submitted that in this case, there was no evidence adduced to support the claim of bias or that the Tribunal had exceeded its jurisdiction. The Hearing was conducted in a fair manner, the Tribunal visited the site before a decision was made.
   

Legal Analysis

8. I will first deal with the right of appeal issue raised by the Applicant.
   
9. Section 33(3) of the Small Claims Tribunal Decree is clear. It provides that any party aggrieved by a decision of the Small Claims Tribunal is entitled to lodge an appeal within 14 days of an Order or decision. In such instances, the Appellant is appealing as of right. The position of any prospective Appellant drastically changes after the 14 day period.
   
10. In the case of Prasad v Prasad [2016] FJCA 116, the Court cited with approval the general principle discussed by Richmond J at page 91 in the case of Avery v No. 2 Public Service Appeals Board and others [1973] 2 NZLR 86, that:
    

‘When once the Appellant allows time for appealing to go by, then his position suffers a radical change, whereas previously he was in a position to appeal as of right, he now becomes an applicant of indulgence by the Court. The onus rests upon him to satisfy the Court that in all circumstances, the justice of the case requires that he be given an opportunity to attack the judgement from which he appeals.

11. In the matter herein, the Applicant failed to lodge an appeal within the 14 days stipulated time frame. As such, his legal position has undergone a radical change. In applying the legal principle advocated in Prasad (supra), the Applicant is no longer appealing as of right but as an Applicant of indulgence by the Court.
    
12. The Applicant has raised the issue of his general lack of knowledge as to the relevant appeal provisions under the law. In the case of Ghim Li Fashion (Fiji) Ltd v Ba Town Council [2014] FJCA 192. The Court considered and applied the principle advocated by Lord Atkin in Evans v Barlam [1937] AC 473 that:
    

‘The fact that there is not and never a presumption that everyone knows the law but there is a rule that ignorance of the law is not an excuse’.

13. In applying the principle stated above, the Applicant’s ignorance of the law is inexcusable. In any event, the excuse given by the Applicant cannot be entertained herein as it has the potential to subvert the ends of justice (see: Chand v Christian Mission Fellowship [2018] FJCA 16).
    
14. The law relating to an appeal out of time is well established in Fiji. In the case of Pacific Agencies (Fiji) Ltd v Spurling [2008] FJCA 49, the Court set out the general principles as follows:
    
    1. The length of the delay.
    2. The reason for the delay.
    100. The chances of an appeal succeeding if the time for appealing is extended.
    4. The degree of prejudice cause to the Respondent if the application is granted.
       
15. I will start with the length of the delay. The Applicant herein is out of time by 163 days. The delay is extensive and excessive.
    
16. Given the considerable length of the delay, a satisfactory explanation is necessary. In the case of Pacific Agencies (supra), the Court considered and cited with approval the comments of Thomson JA in Fa v Tradewinds Marine Ltd (unreported) Civil Appeal No. ABU 0040 of 1994 that:
    

‘that is a very short time period but time limits are set with the intention that they should be observed and even lateness of only 4 days requires a satisfactory explanation before an extension of time can be granted.’

17. In the case herein, the Applicant has merely stated that there was an attempt to file a Notice of Appeal on the 25^th of July 2018. He finally managed to file the Motion herein on the 8^th of November 2018. There is no explanation or reasons given for his failure to file his appeal within the 14 days appeal period under section 33(3). Similarly, there is also no explanation or reasons given for his failure to file an appeal over the next 150 or so days. In short, there is no explanation and/or a satisfactory explanation before the Court.
    
18. The next question is whether the Appeal has merit or whether there are chances of an Appeal succeeding. In the case of Kumar v Narayan [2011] FJMC 106, the Court applied the principle advocated in the case of Ratnam v Cumarasamy (1964) 3 All ER 933 at p934, that:
    

‘The rules of the Court must, prima facie, be obeyed, and in order to justify a Court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion’.

19. The Applicant claims that there was no hearing at the Small Claims Tribunal. He was not given any opportunity to present evidence and make oral submissions in his case. I note that the Applicant has only submitted a copy of his proposed Notice of Appeal in support of this application. He said that he cannot fully discuss the merits of his case until served with a copy record of the proceedings at the Small Claims Tribunal. I disagree. In consideration of the proposed grounds of Appeal filed, I hold the view that a copy of the relevant Order of the Small Claims Tribunal dated 30^th May 2018 is sufficient. Be that as it may, he has failed to adduce any material before this Court. The omission is detrimental as there is no relevant material before the Court in which an exercise of discretion may be made. In that regard, this Court is restricted from forming any views and/or opinions as to whether the proposed ground of Appeal raised has a real chance of success if the application is granted.
    
20. On the question of prejudice, the Court in the case of Pacific Agencies (supra) also relied on the principle advocated in Official Receiver as Trustee in the Bankruptcy for the Estate of Karim v Petrie Ltd (unreported) Civil Appeal No. ABU 0049 of 1997 that: ‘any delay is prejudicial’. In the matter herein, I hold the view that the long delay of 163 days is prejudicial. In any event, a successful party has a right to enjoy the fruits of his judgement. In the case herein, the Respondent has not had that opportunity and it is more than 2 years now. The Respondent has been prejudiced.
    
21. The power to grant leave to appeal out of time is essentially a matter of discretion for the Court. In this case, the Applicant has the onus of explaining to the Court the delay and the reasonable chance of success. The Applicant has failed to do either. I am therefore not convinced that an exercise of discretion to extend the time to appeal is justified herein. The full orders of the Court is as follows:
    
    1. The application to extend the time of appeal herein is denied,
    2. The Applicant is hereby ordered to comply with the Orders of the Small Claims Tribunal dated 30^th May, 2018 within 21 days.
    100. The Applicant is further ordered to pay legal cost to the Respondent in the sum of $200.00 within 21 days.
    4. Appeal within 28 days.
       

As Ordered,

..................................................

Jeremaia N. Lewaravu

Resident Magistrate

24^th February 2021